Court File and Parties

Court File No.: 22-11404546 Date: 20241031 Ontario Superior Court of Justice

Between: His Majesty the King, Applicant – and – Benjamin Bishop, Respondent

Counsel: Robert Thomson, for the Crown Daniel Nugent, for the Respondent

Heard: October 1, 2024

Ruling on Section 715.1 Application

McVey J.

Introduction

[1] Benjamin Bishop stands charged with sexual assault, two counts of invitation to sexual touching, and making sexually explicit material available to a person under the age of sixteen years. There are two complainants, F.T-G. and J.B. This application only relates to the statement of F.T-G.

[2] F.T-G. is currently thirteen years of age. In 2022, F.T-G. spoke to the police on two occasions about his relationship with Mr. Bishop. The Crown seeks a ruling that all but one of the statutory preconditions of section 715.1 of the Criminal Code have been satisfied in relation to those statements. The Crown will seek to have F.T-G.’s statements form part of his evidence if F.T-G. adopts them at trial.

[3] For reasons given below, I am satisfied that F.T-G.’s statements to the police dated April 21, 2022, and October 3, 2022, were taken within a reasonable time of the alleged offences; that they describe the acts complained of; and, if adopted by F.T-G., that their admission at trial would not interfere with the proper administration of justice.

Law and Analysis

[4] The Crown bears the burden of proving, on a balance of probabilities, the following five statutory preconditions when seeking to admit a video-recorded statement pursuant to section 715.1 of the Criminal Code:

1. The victim or witness was under 18 years old at the time of the alleged offence;
2. The video-recorded statement was taken within a reasonable time of the alleged offence;
3. In the statement, the victim or witness describes the acts complained of;
4. The victim or witness, while testifying, adopts the contents of the video-recorded statement; and
5. The admission of the statement would not interfere with the proper administration of justice.

[5] Section 715.1 has a dual purpose. First, it furthers the truth-seeking function of a trial by rendering admissible a record that arguably encompasses a child’s best recollection of past events. Second, it seeks to minimize the well-understood trauma that the criminal justice process inherently visits upon children: see R v C.C.F., [1997] 3 S.C.R. 1183, at paras. 19-20. These dual objectives must be borne in mind when both interpreting and applying the statutory preconditions to ensure that the goals of s. 715.1 are not frustrated by an inflexible approach to the section’s application.

Statements taken within a reasonable time of the alleged offence

[6] I am satisfied that F.T-G.’s statements were taken within a reasonable time of the alleged offences. Whether a statement was given within a reasonable time of the alleged offence is decided on a case-by-case basis: R v L. (D.O.), [1993] 4 S.C.R. 419, at p. 467. Among other things, I must consider the explanation for any delay and the impact of the delay on the complainant’s ability to accurately recall the alleged events: L. (D.O.), at p. 323. However, when doing so, I must appreciate that children often delay disclosing sexual abuse. For that reason, there is no “reasonable time” ceiling beyond which section 715.1 no longer applies:

Accordingly, it would make little sense to take a known feature of many child complainants’ journeys toward the justice system – delayed disclosure – and make it a dispositive factor in the admissibility inquiry. This is precisely why each case must be approached on its own facts, having regard to all of the circumstances of the case, to determine whether the passage of time between the alleged events and the giving of the video statement is “reasonable”.

R v P.S., 2019 ONCA 637, at para. 22.

[7] F.T-G. alleges that Mr. Bishop committed sexual offences against him between November 1, 2020, and December 1, 2021. He provided his first statement to police on April 21, 2022. Where sexual abuse is alleged over a prolonged period, the operative date when assessing whether the statement was taken within a reasonable time of the alleged offence is the last incident of abuse: R v Archer, [2005] O.J. No. 4348 (C.A.), at para. 74; see also R v J.M.S., 2016 NWTCA 2. A contrasting approach could “exclude all statements made by child victims who had endured a prolonged period of abuse, no matter how close to the end of the abuse the child made the videotaped statement”: Archer, at para. 75.

[8] As a result, there is an approximate four-and-a-half-month delay between the last alleged offence and the April 21 statement. In my view, this delay is undoubtedly reasonable when one considers that children often do not immediately report sexual abuse. The reasons for this are numerous and well-understood. Children often feel ashamed, guilty, and confused about what has happened to them. The offender is often someone they love and trust, and children therefore may not appreciate the wrongfulness of what has occurred. In other words, children often do not understand that there is anything to disclose. Their innocence and immaturity are what renders children so vulnerable to sexual abuse.

[9] Notwithstanding the relatively short delay between the last alleged offence and the April statement, Mr. Bishop argues that I should not admit the statement because during the interview F.T-G. exhibited a poor memory of the alleged events. I appreciate that during his April 21 statement, F.T-G. told the interviewing officer numerous times that he either “didn’t know” or did not recall certain details regarding the allegations. In my view, however, those answers do not render his statement beyond the reach of section 715.1.

[10] The initial April statement clearly discloses a timid and embarrassed young child who was not ready to discuss the alleged offences in detail. F.T-G. was talkative and relaxed during the early portion of the interview when the interviewing officer was introducing herself. F.T-G.’s tone and body language quickly changed when the interviewing officer began to ask him questions about Mr. Bishop. F.T-G.’s shoulders became slumped, his voice lowered in volume significantly, there were at times long pauses before he answered a question, and he could no longer make eye contact with the officer. On more than one occasion, F.T-G. answered that “[he did] not want to say” because it was “inappropriate”. He specifically asked the officer not to tell his mother about how he used a massager on his penis in the presence of Mr. Bishop. His embarrassment was palpable on the recording. Despite his obvious discomfort, F.T-G. did describe to the officer that Mr. Bishop touched his penis and bum above his clothing while at Mr. Bishop’s home; that Mr. Bishop told him that the touching was “normal”; that he did not realize that the touching was “bad” until now; that he just wanted to get the memory “out of [his] brain”; that Mr. Bishop explained to him how babies are made; and that Mr. Bishop taught him how to use a massager on his penis. In my view, any shortcomings in F.T-G.’s memory reflected in the April statement do not rise to such a level that they undermine the admissibility of the statement: see P.S., at paras. 24-26.

[11] In addition, it becomes apparent during F.T-G.’s second statement provided in October 2022, which I describe more fully below, that F.T-G. does recall many additional details but was too embarrassed to speak about them during the April interview. As a matter of fairness, the Crown seeks to tender both statements to counter any suggestion that they are cherry-picking the more detailed version.

[12] F.T-G.’s second statement was taken on October 3, 2022, resulting in an approximate ten-month delay between the last alleged offence and the statement. This delay is also reasonable when I consider the explanation for it. As noted above, F.T-G. was first interviewed in April 2022 just weeks after he first disclosed the abuse. F.T-G. was clearly uncomfortable when speaking about the allegations to police. The interviewing officer stopped the interview because of the distress F.T-G. was exhibiting and advised F.T-G.’s mother that the police would follow up later to assess whether F.T-G. could be re-interviewed. Police followed up with F.T-G.’s mother in August 2022 and arranged to re-interview F.T-G. in early October. In my view, the police proceeded in a child-focused and professional manner.

[13] F.T-G. was far more forthcoming in the October interview. Though he did not remember every detail of the alleged offences, in my view, F.T-G. provided a coherent narrative delivered in age-appropriate language. Mr. Bishop argues that F.T-G. had “serious gaps” in his memory and therefore his statement is unreliable and should be excluded. As an example, Mr. Bishop notes that F.T-G. cannot remember the specifics of the last incident or first incident of the alleged abuse. In my view, this is arguably the type of detail one would expect a child not to remember with exactitude. To that end, in my view, F.T-G.’s inability to remember those details does not impact the admissibility of his statement.

[14] To be clear, I am not suggesting that frailties, if any, in F.T-G.’s memory are irrelevant. Those weaknesses may legitimately impact the ultimate reliability of his evidence, but that will fall to be determined on a full record: P.S., at para. 29.

Describe acts complained of

[15] I can deal with this precondition summarily. F.T-G. clearly describes the acts complained of in both of his statements. Among other things, F.T-G. tells the interviewing officer that Mr. Bishop touched his bum and penis above his clothing at Mr. Bishop’s home; that Mr. Bishop tried to touch him under his clothing by putting his hands up his shorts, but F.T-G. told him to stop and he did; that Mr. Bishop taught him how to use a massager on his penis; that Mr. Bishop used the massager on his own penis while exposing himself in F.T-G.’s presence; that Mr. Bishop later purchased F.T-G. a vibrator that F.T-G. used at Mr. Bishop’s residence; that Mr. Bishop would watch F.T-G. masturbate with the massager and tell him that he “looked so good”; that he watched pornography with Mr. Bishop while at his home; that Mr. Bishop told F.T-G. that having sex with him would be like winning the lottery; and that he texted with Mr. Bishop via Discord and they sent each other peach and eggplant emojis, which are known to represent a bum and a penis.

[16] Mr. Bishop argues that F.T-G. does not describe the “acts complained of” because his answers were often “vague, inconclusive, and unpersuasive”; F.T-G. felt pressured to “turn against [Mr. Bishop]”; and that the interviewing officer asked F.T-G. leading and suggestive questions.

[17] In my view, frailties in F.T-G.’s memory, the impact, if any, of his mother’s involvement, and the nature of the questions posed by the interviewing officer are issues best addressed when considering whether the statement was taken with a reasonable time or whether the statement’s admission would interfere with the proper administration of justice. They are not factors that speak to whether F.T-G. described the “acts complained of”.

[18] On both occasions when F.T-G. spoke with the police, at varying degrees of detail, he described the sexual abuse he allegedly suffered at the hands of Mr. Bishop. That is all that is required of this precondition.

[19] With that said, in his October statement, F.T-G. also spoke about an alleged sexual encounter between Mr. Bishop and an unknown seven-year-old child, that F.T-G. says Mr. Bishop told him about. The portions of the statement that refer to that alleged activity do not fall within the “acts complained of”. They constitute presumptively inadmissible similar fact evidence and should be vetted from the statement and disregarded: R v J.A.T., 2013 ONSC 5787, at para. 11; R v A. (J.F.), [1993] O.J. No. 1494 (C.A.), at paras. 22-24.

Interfering with proper administration of justice

[20] Cases where the admission of a videotaped statement would interfere with the proper administration of justice despite meeting the other statutory criteria should be “relatively rare”: C.C.F., at para. 51. Numerous factors are relevant to this assessment, including the form of questions used by the interviewing officer; the interests of anyone participating in the making of the statement; the quality of the video and audio reproduction; the presence or absence of inadmissible evidence in the statement; the ability to eliminate inappropriate material by editing the tape; whether other out-of-court statements by the complainant have been entered; whether any visual information in the statement might tend to prejudice the accused (e.g., unrelated injuries on the victim); whether the prosecution has been allowed to use any other method to facilitate the giving of evidence by the complainant; whether the trial is by judge alone or by a jury; and the amount of time which has passed since the making of the tape and the present ability of the witness to effectively relate to the events described: C.C.F., at para. 51. In addition, a court may consider whether any intervening acts that have taken place between the alleged offences and the giving of the statement undermine its reliability: R v P.C.B., [2024] O.J. No. 323.

[21] A consideration of the above factors ensures that the contents of the statement generally conform to the rules of evidence and that its probative value exceeds any prejudicial impact. However, a court must be cautious not to conflate the issues of ultimately reliability and admissibility: C.C.F., at para. 52.

[22] Mr. Bishop argues that the admission of the statement would interfere with the proper administration of justice because the officer asked leading questions; the police coerced F.T-G. to provide a second statement; F.T-G. had numerous conversations with others about the allegations between the first and second interview; and F.T-G. disclosed an animus towards Mr. Bishop in his second statement. I am not persuaded by any of these arguments, either individually or when considered cumulatively. I will address each argument in turn.

[23] First, the interviewing officer did not overly rely upon leading questions. Often, the officer was following up on something that F.T-G. stated or demonstrated earlier in the interview. For example, Mr. Bishop cites the following as an inappropriate leading question:

Officer: When Ben was putting his hand inside your shorts, did he ever touch your penis? F.T-G.: Um, maybe. But then I would like, tell him to get off. Officer: When you say maybe, did he or did he not touch your penis? F.T-G.: Uh, I don’t think so.

[24] Mr. Bishop takes issue with this exchange because F.T-G. had already advised the officer that the touching took place over his clothes. However, earlier in the interview, F.T-G. also told the officer that Mr. Bishop would “sometimes…go like that” and then F.T-G. placed his hands up the legs of his shorts. Therefore, when the officer prefaced her question with, “when Ben was putting his hand inside your shorts”, she was referring to something that F.T-G. had already told her.

[25] Similarly, when asked whether the touching was “over or under your clothes”, F.T-G. answered, “usually over”. That answer would suggest that at times the touching occurred under the clothing. To clarify, the officer asked F.T-G., “has it happened that it was under as well”. This was a natural and appropriate follow-up question in the circumstances.

[26] At one stage of the October interview, the officer did ask F.T-G., “which part of Ben’s body did you touch”. I agree that this question was problematic given that it presumes F.T-G. had touched Mr. Bishop’s body when F.T-G. had not expressed that earlier in his statement. However, this type of question was the exception not the rule during the interview. In addition, F.T-G. answered, “I didn’t really. Well, obviously, like holding his hand while we cross the road and stuff like that…” Therefore, to the extent that the question was leading and suggestive, it did not affect F.T-G. who stated that he had not touched Mr. Bishop in a sexual way.

[27] Questioning young children is difficult. Depending on the age of the child, purely open-ended questions may not focus them enough. This is particularly the case when a child is justifiably reluctant to share embarrassing and private details of their lives with strangers in a foreign environment, or when the child does not appreciate the wrongful nature of the conduct therefore does not understand what information the police are seeking. An interviewing officer must be afforded some latitude such that they can appropriately focus the child on the details that are important to the investigation and potentially critical to protecting the child from ongoing abuse: see C.C.F., at para. 53. Interviewing officers must often walk a fine line in this regard, which is why the impact of leading questions on the admissibility of a statement pursuant to s. 715 should be assessed on a case-by-case basis. I see no significant issues with the nature of the questioning in this case, particularly given that F.T-G. is bright and articulate.

[28] Second, Mr. Bishop also claims that F.T-G. discussed the allegations with other individuals before providing his second statement and that those intervening events undermine the statement’s reliability. There is no evidence before me that F.T-G. discussed the specifics of the allegations with anyone before his second statement. There is evidence that when speaking with a friend on the phone, the friend asked him whether he had been sexually abused by Mr. Bishop. The friend purportedly told F.T-G. that the friend’s mother had just told him about it. F.T-G. was taken aback that his friend seemingly knew about the allegations and asked his mother how that may be so. F.T-G.’s mom apparently told F.T-G. that his friend was a “liar” because the friend had also been questioned by police therefore contrary to what he told F.T-G., the friend had known about the allegations for some time. On the application, there is no evidence that F.T-G. spoke about the details of his allegations with his friend. Nor is there any evidence that his mother improperly influenced him in making a second statement.

[29] Children speaking with others about allegations of sexual abuse before being interviewed by police is not unusual. Absent rare circumstances, these interactions should not render section 715.1 inapplicable. In the vast majority of cases, particularly those involving young children, child complainants do not contact the police directly. They typically disclose to teachers, friends, or other trusted adults. Very young children often say something they view as innocent but that appropriately strikes an adult as suspicious or unusual. An adult or a child protection worker may discuss the situation with the child first before contacting police. The fact that F.T-G. may have discussed his experience with his mother is completely natural and does not, on its own, raise reliability concerns sufficient to undermine the admissibility of the statement.

[30] This case is distinguishable from P.C.B. There, the trial judge declined to admit a child’s statement pursuant to s. 715.1 because its prejudicial value outweighed its probity. In that case, the child did not disclose sexual abuse until her third police interview. The trial judge found as a fact that the child’s aunt had influenced the child between the second and third statement. In the present matter, F.T-G. did disclose that he had been touched inappropriately during his first interview. In his second statement, he simply provided further details. Incremental disclosure is not unusual in child sexual assault cases for reasons expressed earlier. Further, unlike in P.C.B., in the context of this application, I have not found that an adult inappropriately influenced F.T-G. in providing a second statement. That suggestion, however, can be fully canvassed at trial and considered in the overall assessment of F.T-G.’s evidence.

[31] I accept that as a general principle, events can take place before the making of a statement that could impact its reliability and call into question its admissibility. To the extent that P.C.B. stands for that proposition, I agree with it. Beyond that, the decision in P.C.B. was decided on its own facts and does not impact the appropriate result in the case before me.

[32] I note also that in C.C.F., the police interviewed the complainant before making the videorecorded statement. Though the Supreme Court of Canada far from endorsed this practice, it found that any issues arising from it could have been satisfactorily addressed when assessing the statement’s ultimate reliability.

[33] Third, Mr. Bishop argues that the prejudicial impact of the statements is sufficient to render them inadmissible because F.T-G. exhibited an animus towards him. Towards the end of the second statement, when speaking about the various steps in the criminal process, the interviewing officer asked F.T-G. what he thought should happen to Mr. Bishop. F.T-G. responded that Mr. Bishop “should go to jail”. In my view, this answer has no bearing on the reliability of the statement because it has little to no forensic value. If the allegations against Mr. Bishop are true, F.T-G.’s position that Mr. Bishop should go to jail is consistent with prevailing Canadian values and a consequence of the truth, not a motive to lie: see R. v. J.V., 2015 ONCJ 815, at para. 146.

[34] Fourth, Mr. Bishop maintains that the police “forced” F.T-G. to speak about something that he did not wish to divulge and therefore they coerced him into giving a second statement. The evidence lead on this application does not support this assertion. There was nothing unreasonable about police halting the initial interview of F.T-G. to protect his emotional well-being yet attempt to speak with him later when he may be more mature and emotionally able to speak to police in more detail. Interviewing children is not an easy task. The criminal process must do its best to address the needs and schedules of children, not the other way around. The police would not have acted responsibly had they simply dropped the matter after F.T-G. provided evidence in April 2022 that he had been touched inappropriately by Mr. Bishop. F.T-G. can be fully cross-examined at trial regarding whether he felt coerced when giving either statement.

[35] Fifth, Mr. Bishop argues that if F.T-G. ultimately has no memory of the alleged events, that the prejudicial impact of admitting the statements will far exceed their probative value. This argument was effectively addressed in C.C.F., where the Supreme Court held that having a live memory of the alleged offences was not a prerequisite of s. 715.1 because of the section’s built-in guarantees of trustworthiness and reliability. Though a child witness cannot be cross-examined on the contents of their statement if they have no memory of the events in question, the following factors provide the requisite reliability to justify the statement’s admission: the statement was taken within a reasonable time of the alleged offences; the trier of fact can watch the entire interview which captures the demeanour, intelligence, and personality of the child; the child must attest that they were being truthful when the statement as made; and the child can be cross-examined on whether they were being truthful at the time. Where the child witness has no memory of the events, that is an issue impacting ultimately reliability and the trier of fact should be warned about the dangers of convicting based on the recording alone: C.C.F., at paras. 40-44.

[36] Sixth, Mr. Bishop took issue with the prejudice associated with only admitting the second more detailed statement. This can be satisfactorily dealt with by admitting both statements, so the evidentiary record reflects the incremental manner in which F.T-G. disclosed the alleged events.

[37] Finally, Mr. Bishop argues that the Crown “has failed to explain what additional harm the complainant is likely to suffer if his video statements are not admitted given the other accommodations the Crown seeks and the harm the complainant has already allegedly suffered from being interviewed multiple times by police authorities”. I reject this argument. Children who have been abused are generally experiencing fear and emotional turmoil, and the criminal justice system then thrusts them into the spotlight: L. (D.O.), at para 70. Along with other testimonial aids, like CCTV and the presence of support persons, s. 715.1 is a “modest legislative initiative” that attempts to provide a “workable, decent and dignified means for the victim to tell his or her story to the court” by diminishing the number of times they need to repeat their narrative: L. (D.O.), at paras. 35, 70. The use of CCTV and support persons does not address the specific harms that flow from a child having to repeat their narrative in front of varying audiences in different environments. It is “often the repetition of the story that results in the infliction of trauma and stress upon a child, who is made to feel that she is not being believed and that her experiences are not being validated”: L. (D.O.), at para. 35. To be clear, individualized evidence about why or how a particular child will be harmed by having to repeat their allegations in court is not required by section 715.1. I need no additional evidence to understand just how harmful it will be for a thirteen-year-old child to repeat his alleged embarrassing and distressing history with Mr. Bishop in a foreign and intimidating environment in the presence of complete strangers.

Prejudicial effect outweighs probative value

[38] Even where the statutory criteria are met, I must nonetheless consider whether the prejudicial impact of the statement’s admission outweighs its probative value. It is unclear if the consideration of whether the “admission of the video recording in evidence would interfere with the proper administration of justice” in section 715.1 is intended to capture all the circumstances in which a judge has discretion to exclude a videorecorded statement.

[39] I have considered all the factors relevant to my exclusionary discretion when assessing whether the admission of the statements would interfere with the proper administration of justice. For the same reasons, I see no basis to exclude the statements pursuant to my exclusionary discretion.

[40] Should F.T-G. adopt his statements during trial, they shall be admitted pursuant to s. 715.1.

McVey J. Released: October 31, 2024